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Carlos Alberto Flores-Lopez v. Holder

The Ninth Circuit held that California Penal Code section 69, attempting to deter or resisting an executive officer, is not categorically a crime of violence for aggravated felony purposes. On its face, CPC 69 would seem to be a crime of violence since it may be violated in two ways: (1) by attempting through threats or violence to deter or prevent an officer from performing a duty imposed by law; or (2) by resisting by force or violence an officer in the performance of his or her duty. California jury instructions, however, provide that "violence" in this respect is synonymous with "force" and both "mean any [unlawful] application of physical force against the person of another, even though it causes no pain or bodily harm or leaves no mark and even though only the feelings of such person are injured by the act."

The Supreme Court has held that under the first test for determining if an offense is a "crime of violence", 18 USC 16(a) ("an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another") an offense must be an active, violent crime. The Ninth Circuit has previously held that a California battery that requires only an offensive, noninjurious touching does not necessary meet that standard. CPC 69 requires only the same type of battery, so it is not necessarily a crime of violence either.

Although the offense is not a crime of violence under the first test for a crime of violence, the alternative test encompasses "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 USC 16(b). The Supreme Court has held that this test, like section 16(a), requires a level of intent of at least recklessness. Resisting an officer under the second prong of CPC 69 is a general intent crime that requires only the intent to resist with at least de minimus force. It does not require intentional use of violent force or reckless disregard of a substantial risk that violent force may be used (by the offender). In other words, a person may be convicted of CPC 69 for nonviolently resisting under circumstances where there is no substantial risk of that resulting in violent force. The court contrasted an Arizona statute that had been interpreted by the Arizona courts to exclude de minimus resistance and which required a substantial risk of injury to the peace officer. CPC 69 thus is not categorically a crime of violence.

The court remanded the case to allow the government to file additional conviction documents to establish that this particular conviction was for a crime of violence. When the case was before the agency, the Ninth Circuit's previous "missing element" rule was in effect and the government may not have had cause to submit documents for the so-called modified categorical analysis. Aguila Montes de Oca overruled the missing element rule after the agency decided the case, so the court found the government should have the opportunity to further contest the case under Aguila. The court rejected the petitioner's argument that Aguila's new rule should be applied only prospectively.

Finally, I would note that the fantastic decision in this case was surely the result of great lawyering by super lawyer Holly Cooper of the UC Davis Immigration Law Clinic.